A efetivação dos direitos fundamentais sociais em cenário de escassez econômica

Abstract

The scarcity of resources has always been present in humanity. From the very beginning, a time when human beings' survival was especially guaranteed by their hunting, fishing and cultivation skills, up to the current social format, men rarely enjoyed a scenario of material resources abundance that allowed them to supply all their needs. Therefore, they had to learn how to live with choices and priorities, which were not always characterized as simple decisions. Human existence itself is characterized by the search for reconciliation between the existence of finite resources to satisfy unlimited needs. The advent of human rights, the result of secular struggles in pursuit of the dignity realization of the human being, was unable to alter this factual reality. Rights, usually, require material resources to take effect. With a social format that calls for more rights every day, society was forced to find ways to make them effective, making resource allocation choices. The tragic nature of these choices increases as the scarcity of resources increases, reaching the point of considering the realization of fundamental rights. In addition to this problem, there is the role of the Judiciary in enforcing rights. Of the three functions of state power, the judicial function is the only one that was not directly elected, extracting the legitimacy of its performance from the political charter. The public policies implementation is a matter inherent to the executive and legislative functions, not least because their representatives were democratically elected to do so. However, if the Executive and Legislative Powers fail to comply with this requirement, the Judiciary may act in order to enforce the normative force of the constitution. The question then arises as to how the Judiciary Power will act in the realization of fundamental rights, more precisely when it makes allocative decisions in a scenario of marked scarcity of resources, considering the protection of an individual's fundamental right with the need to safeguard resources for that other members of society also have their respective rights preserved